Darron K. CAMPBELL, Appellant, v. Carl WHITE, et al., Appellees.
No. 83-1048
United States Court of Appeals, Eighth Circuit
Decided Dec. 1, 1983
724 F.2d 644
Submitted Nov. 22, 1983.
In both her pro se complaint and the amended complaint filed by her court-appointed attorney, Allen requested a jury on both the Title VII claim and the
Allen‘s second argument is that her court-appointed attorney was ineffective. First, from our reading of the transcript, Allen‘s attorney seems to have done a good job; the district court characterized his work as “exemplary.” Second, even if Allen‘s attorney did just as Allen alleges in her brief on appeal, he would not have abdicated his duty to provide competent legal assistance. Third, the stringent standards of the sixth amendment do not apply to civil proceedings. Watson v. Moss, 619 F.2d 775, 776 (8th Cir.1980). Allen had no right to a court-appointed attorney, and it follows that she is not entitled to a new trial, any more than a litigant with retained counsel, in the event of attorney incompetence. Id.
Finally, Allen argues that the district court erred by failing to rule on her fourteenth and thirteenth amendment claims. Allen‘s amended complaint mentions those amendments in passing, but no theory of recovery under those amendments is outlined, nor are there any facts alleged to support such claims were they to be inferred. There was little evidence put forth at trial on such claims. The attorneys and the district court tried the case as if it contained only racial discrimination claims. We cannot say the district court erred in failing to rule on other claims not clearly presented to it.
The judgment of the district court is affirmed.
Darron Keith Campbell, pro se.
John Ashcroft, Atty. Gen., Rosalynn Van-Heest, Jefferson City, Mo., for appellees.
Before BRIGHT, ROSS and JOHN R. GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Darron Campbell appeals the district court‘s1 dismissal of his civil rights suit, 552 F.Supp. 1243, brought under
In 1979
The Advisory Committee comments to the 1979 amendment state:
The proposed amendment would make it clear that a motion to extend the time must be filed no later than 30 days after the expiration of the original appeal time, and that if the motion is timely filed the district court may act upon the motion at a later date, and may extend the time not in excess of 10 days measured from the date on which the order granting the motion is entered.
Under the present rule there is a possible implication that prior to the time the initial appeal time has run, the district court may extend the time on the basis of an informal application. The amendment would require that the application must be made by motion, though the motion may be made ex parte. After the expiration of the initial time a motion for the extension of the time must be made in compliance with the F.R.C.P. and local rules of the district court. . . . (Emphasis added).
The meaning of the amendment to
This meaning is underscored by
Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing of notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
We think it clear that the 1979 amendment requires the filing of a motion and that the notice of appeal received after the date for filing notices may not be con
In Brooks v. Britton, 669 F.2d 665, 667 (1982), Chief Judge Godbold, speaking for the Eleventh Circuit, examined the change in language of
If informal or implicit applications are not allowed prior to expiration of the time for filing the notice of appeal, a fortiori such applications are not allowed after expiration of the time for filing. Moreover, the import of Sanchez v. Board of Regents, supra, is that the prior practice of recognizing implicit motions for extension of time is not to be followed under the amended Rule 4(a). Therefore, we must conclude that since appellant failed to properly move for an extension of time to file his notice of appeal any implicit finding of excusable neglect by the district court is ineffectual.
As stated in 9 Moore‘s Federal Practice ¶ 204.13[2] at 4-104.3 (2d Ed.1982):
Given the repeated holding by the Supreme Court that Rule 4 is “mandatory and jurisdictional,” the result of a failure to file a timely notice of appeal, followed by failure to make a timely motion to be permitted to file one out of time, extinguishes the right to appeal beyond revival by either the district court or the court of appeals.
We are aware that before 1979 any kind of filing might be treated as a motion for extension and excusable neglect might be established and an extension granted later.4 We have earlier so considered a notice of appeal filed eight days after the expiration of the time limitation for filing notices, and remanded the case to the district court to accept nunc pro tunc the notice on grounds of excusable neglect. Seshachalam v. Creighton University School of Medicine, 545 F.2d 1147 (8th Cir.1976), cert. denied, 433 U.S. 909 (1977); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach, 525 F.2d 1179 (8th Cir.1975) (The Eighth Circuit assumed arguendo that it had the power to remand for a determination of excusable neglect but suggested when no motion for extension or showing of excusable neglect was made within the thirty-day extension period normally the court of appeals should not remand). But see United States v. McKnight, 593 F.2d 230 (3d Cir.1979) (A divided panel held the court of appeals lacked jurisdiction to remand the cause to allow appellant to move for an extension). The amendment to
This issue has been very capably illuminated in the recent decision of the Fourth Circuit in Shah v. Hutto, 704 F.2d 717 (1983). Senior Judge Haynsworth reached a conclusion contrary to the one we here reach. He stressed a liberal and flexible approach to the rules and concluded that the 1979 amendment of
The rules and their amendments are prepared with care and submitted to Congress with an opportunity for disapproval. We may not rewrite procedures that have been clearly laid down for us. As Judge Hall commented in his dissent in Shah, 704 F.2d p. 723, “We judges do not sit as legislators.”
We realize that the enforcement of this rule may have harsh results. We think it mandatory that the district court clerks’ offices screen notices of appeal for timeliness and advise pro se litigants of the appropriateness of an extension motion. We further direct that district court clerks prepare a notice to be given litigants that informs them of the time limitations for filing a notice of appeal under Rule 4 of the Federal Rules of Appellate Procedure, and the necessity of filing a timely motion for extension within the thirty (30) day extension period if the notice of appeal is untimely.
The appeal is dismissed.
BRIGHT, Circuit Judge, dissenting.
I dissent from the majority‘s disposition of this case. I would adopt the reasoning of Judge Haynsworth, author of the majority opinion in Shah v. Hutto, 704 F.2d 717 (4th Cir.1983). In that case, in circumstances analogous to the case before us, the Fourth Circuit held that when a pro se prisoner files a notice of appeal more than thirty days after entry of judgment but within the subsequent thirty day period during which the district court might grant an extension of time to appeal under
There is no doubt, however, that the notice was a clear indication of their intention to appeal, and implicit in that is a wish to do and have done whatever was necessary to preserve and protect their rights. If someone in the clerk‘s office had informed them of the delay and of the appropriateness of a motion for an extension of time, there is little doubt but that they would have embraced the suggestion. Unless the notice of appeal is given such a construction, the rule becomes a trap for the unwary. [footnote omitted]
Accordingly, I would remand this case to the district court to permit Campbell to amend his implied motion for extension of time by filing a written motion, to be deemed filed nunc pro tunc as of the date of the late notice of appeal, and to permit the district court to rule on that request.